Judgment N.P.SINGH, J. 1. All these three criminal appeals, arise out of the same judgment, have been heard together and are being disposed of by this common judgment. 2. All the appellants have been convicted u/ Ss. 302/34 and 201 of the Indian Penal Code and sentenced to imprisonment for life u/ S. 302/34 of the Indian Penal Code. No separate sentence has, however, been awarded u/ S. 201 of the Indian Penal Code. 3. The prosecution case, as set out in the written report (Ext. 1) of the informant Mukti Nath Choudhary (P.W. 1), is that his second daughter, namely, Sabita Kumari was married to the appellant Upendra Singh in the year 1980. After marriage she went to her husbands house and remained there for a pretty long time. Meanwhile, she became unwell, then she was brought back by the informant to his house for her treatment. When she came back, she told her parents that she was looked down upon by the family members of her husband. In the last Agarhan Donga of deceased daughter was performed and she went to her husbands house. Some time, thereafter, when the informant went to the house of his deceased daughter she told him that her clothes and ornaments which she had kept in the box, were being used by the wife of appellant Sheochandra Singh, elder brother of her husband and on demand made by her, the same were not given back to her and she was threatened by the family members. It was further alleged that on 1-7-1985 the informant heard a rumour at about 11 a.m. that his daughter had died. On hearing the rumour the informant went to the P.O. village along with Ram Swarath Choudhary (P.W. 3), Shiy Shankar Choudhary (P.W. 4), Arun Kumar Choudhary (not examined), Arbind Kumar Choudhary (P.W. 2) of his village, and on enquiry, the informant came to know that the appellants had killed his daughter Sabita Kumari in the night of 30/06/1985 and her dead body was burnt by setting fire the kitchen to give a colour of accidental burning. On 30-6-1985 there was raining for the whole night. On 1-7-1985 the Choukidar gave information to the police but the dead body was not kept for the inquest by the police and the same was disposed of. Therefore, it appeared to him that his daughter had been intentionally killed. On 30-6-1985 there was raining for the whole night. On 1-7-1985 the Choukidar gave information to the police but the dead body was not kept for the inquest by the police and the same was disposed of. Therefore, it appeared to him that his daughter had been intentionally killed. On the basis of written report of the informant a formal First Information Report (Ext. 4) was drawn up and the police took up investigation of the case. After the charge sheet and cognizance the case was committed to the court of Sessions for trial. 4. The appellants in defence, pleaded not guilty to the charges and claimed to be tried. Their further defence was that the deceased was burnt to death in the accidental fire, while she was preparing food. They also examined D.W. 1 Nand Kishore Prasad Sahi and D.W. 2 Brij Nandan Singh in support of their defence. 5. At the trial, the prosecution examined as many as 14 witnesses. Out of whom, P.W.2 Arbind Kumar Choudhary, P.W. 4 Shiv Shankar Choudhary, P.W. 11 Surendra Singh, P.W. 13 Jagdish Prasad Singh have been tendered. P.W. 7 Gajadhar Singh, P.W. 8 Paras Nath Singh, P.W. 10 Satrughan Prasad Singh and P.W. 12 Chandradeo Singh have been declared hostile by the prosecution. P.W. 1 Mukti Nath Choudhary, P.W. 3 Ram Swarath Choudhary, P. W. 5 Bhikhan Bhagat P.W. 6 Bishwanath Singh are material witnesses in this case. P.W. 14 Shasi Nath Lal Das is the Investigating Officer of this case and P. W. 9 Ram Janak Singh is an Executive Magistrate who held confidential enquiry in the case on the order of the S.D.M. Vaishali and has proved the statement of witnesses recorded by him (Exts. 2 to 216). 6. On consideration of the evidence the learned Addl. Sessions Judge convicted the appellants in the manner as indicated above. 7. Sri K. P. Singh, Senior counsel appearing for the appellants has contended that the trial court has convicted the appellants on mere conjucture and surmises. There is no legal evidence to sustain the conviction of the appellants. There is a definite finding of the trial court in para 4 of the judgment that there was no evidence that the deceased was over subjected to assault by the appellants. In paragraph it has been further held that there was no evidence that the appellants had committed the murder of the deceased. There is a definite finding of the trial court in para 4 of the judgment that there was no evidence that the deceased was over subjected to assault by the appellants. In paragraph it has been further held that there was no evidence that the appellants had committed the murder of the deceased. There is vital contradiction in the evidence of P.Ws. 1, 3, 5 and 6 who have been examined by the prosecution on material points. The evidence of P.W. 9 is not legal in the eye of law. 8. P.W. 1 Mukti Nath Choudhary is the father of the deceased and the informant of this case. P.W. 3 Ram Swarath Choudhary is resident of the village of P.W. 1. They have stated that on hearing the rumour about the murder of the deceased they went to the P.O. village and came to know about the occurrence from Ram Suchit Singh, Mangal Singh and Ambika Singh, neighbours of the appellants. But none of them has been examined by the prosecution for the reasons best known to them. In such a situation the evidence of P.Ws. 1 and 3 are not admissible in view of S. 60 of the Indian Evidence Act. Apart from this, there is a serious contradiction in the evidence of P.Ws. 1 and 3 regarding the source of their information and also the manner of reporting about the occurrence. P.W. 3 has stated that he had gone to the P.O. village along with P.W. 1, where they contacted Ram Suchit Singh, Mangal Singh and Ambika Singh and learnt about the occurrence from them that appellants had burnt the daughter of P.W. 1, whereas P.W. 1 has stated that he had not gone to the house of any villager and had met any body and not even Ram Suchit Singh of the village of place of occurrence on way to the place of occurrence. Further, statement of P.W. 1 is that the entire hut was burnt, whereas P.W. 3 has stated that only a portion of hut was burnt. The Investigating Officer (P. W. 14) has found the complete hut burnt to ashes. 9. As regards the manner of reporting is concerned, it appears that P.W. 1 has given two inconsistent statements. In paragraph 2 he has stated that from the P.O. village he came to Bhagwanpur P.S. along with P.W. 3 where he lodged information. The Investigating Officer (P. W. 14) has found the complete hut burnt to ashes. 9. As regards the manner of reporting is concerned, it appears that P.W. 1 has given two inconsistent statements. In paragraph 2 he has stated that from the P.O. village he came to Bhagwanpur P.S. along with P.W. 3 where he lodged information. Whereas in paragraph 5 he has stated that from the P.O. village he came to his house and then he went to Bhagwanpur P. S. where he submitted a written report about the occurrence. P.W. 3 has stated that from P. O. village they came to Bhagwanpur P.S. Thus the evidence of P.Ws. 1 and 3 are not consistent on material points. 10. It also transpires that P.W. 3 Ram Swarath Choudbary had sufficient reason to implicate the appellants in this case falsely. Satrughan Choudhary, son of P.W. is. married to the daughter of Dewanti Kuar and there were serious litigation between Dewanti and the appellants. 11. P.W. 5 Bhikhan Bhagat, is solitary eye witness in this case. He is a resident of, another village. He is not named in the First Information Report. He has deposed that he went to the house of appellants on hulls and saw the deceased being burnt by the appellants in the fire of the hut but he did not disclose about it to any one and remained silent. In the case of State of Orissa V/s. Brahmananda Nanda AIR 1976 SC 2488 , it has been observed that where in a murder case the entire prosecution case depended on an evidence of a person claiming to be the eye witness when this witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witnesses and the High Court was correct in rejecting it as untrustworthy. In the present case the P.W. 5 kept mum for four days. He disclosed the complicity of the appellants in the alleged offence, to the Investigating Officer for the first time four days after the occurrence. No explanation has been offered for not disclosing the complicity of the appellants to any one. Besides this infirmity this witness also appears to be inimical to the appellants on account of land dispute with respect to plot No. 1570. No explanation has been offered for not disclosing the complicity of the appellants to any one. Besides this infirmity this witness also appears to be inimical to the appellants on account of land dispute with respect to plot No. 1570. Therefore, the credibility of the testimony of this witness as an eye witness to the occurrence cannot be relied upon. 12. As regards, the evidence of P.W. 6 Bishwanath Singh is concerned, it is evident from the evidence of P.W. 5 Bhikhan Bhagat that he had also suspicion regarding the involvement of this witness in the alleged offence. This witness has, however, deposed that he did not see any body burning in the fire. He did not go near the house on fire. He returned from the road itself. It appears that this witness was not examined by the Investigating Officer during the investigation. Since this witness has not seen the deceased being burnt, the evidence of this witness is of no help to the prosecution. 13. As regards, evidence of P.W. 9, Ram, Janak Singh, Executive Magistrate, is concerned, he has stated that he was directed by the S.D.M. Vaishali to enquire into the case. Pursuant to the order of the S.D.M. he went to the P.O. village and made enquiry and recorded statement of the witnesses. He also proved Exts. 2 to 216, statement of witnesses recorded by him in course of enquiry. 14. This witness appears to have made a parallel investigation in this case. But he never appeared before the Investigating Officer in course of investigation of this case to help and guide him to proceed in the light of his enquiry. 15. As regards, the investigation of a cognizable offence is concerned, the power of investigation of a cognizable offence has been vested to the police under Chapter XII of the Code of Criminal Procedure. The Code does not confer the power of investigation to any other agency to make a parallel investigation of a cognizable offence. 16. Sec. 156(3) of the Code of Criminal Procedure, however, lays down that any Magistrate empowered u/ S. 190 of the Code of Criminal Procedure may order such an investigation. The word Magistrate mentioned in the section, however means judicial Magistrate, who is competent to take cognizance of a cognizable offence and not Executive Magistrate. 16. Sec. 156(3) of the Code of Criminal Procedure, however, lays down that any Magistrate empowered u/ S. 190 of the Code of Criminal Procedure may order such an investigation. The word Magistrate mentioned in the section, however means judicial Magistrate, who is competent to take cognizance of a cognizable offence and not Executive Magistrate. S. 156(3) of the Code of Criminal Procedure does not confer any power to the S.D.M. who is an Executive Magistrate to direct any Executive Magistrate to make investigation of a cognizable offence. The S.D.M. Vaishali by directing the P.W. 9 to make enquiry of a cognizable offence in this case, has transgressed his power. The order of the S.D.M. is illegal and without jurisdiction. The enquiry conducted by P.W. 9 pursuant to the order of the S.D.M. Vaishali in this case is wholly illegal. The statement of witnesses recorded by him marked Exts. 2 to 2/6 and the evidence of P.W. 9 are fit to be rejected. 17. It was argued by Sri K. P. Singh that prior to the lodging of the First Information Report, a Sanha about the occurrence was lodged by village Chaukidar. The investigating officer (P.W. 14) has admitted that information lodged by the Chaukidar at the Police Station was recorded in the Station diary, but that Station diary entry has not been brought on the record, nor any explanation has been offered by the prosecution for their non-production in the Court. The Sanha being the first information about the occurrence lodged at the Police Station should have been treated as First Information Report in this case but the same was withheld by the prosecution purposely for the reasons best known to them. There is force in the submission of Sri Singh. The suppression of Sanha by the prosecution leads to an inference that the chaukidar might have lodged information that the deceased had burnt to death in. accidental fire and for that reason that was withheld and distorted version was set up in the First Information Report. Therefore, an adverse inference has to be drawn against the prosecution case. 18. Further, it appears that the First Information Report (Ext. 4) was recorded on 1-7-1985, whereas it was received in the court d the Chief Judicial Magistrate, Vaishali on 4-7-1985. There is no explanation for the delayed receipt of the First Information Report (Ext. Therefore, an adverse inference has to be drawn against the prosecution case. 18. Further, it appears that the First Information Report (Ext. 4) was recorded on 1-7-1985, whereas it was received in the court d the Chief Judicial Magistrate, Vaishali on 4-7-1985. There is no explanation for the delayed receipt of the First Information Report (Ext. 4) in the court of the Chief Judicial Magistrate, Vaishali. This indicates that the First Information Report was not recorded on the stated day and time and the distorted version of the occurrence was set up. Reliance was also placed in the case of Ishwar Singh V/s. State of Uttar Pradesh, AIR 1976 S C 2423. 19. It may be relevant to mention here that S. 157(1) of the Code of Criminal Procedure lays down that, the First Information Report in respect of cognizable offence shall be sent forthwith to a Magistrate competent to take cognizance of an offence. In the present case, First Information Report was sent to the court of Chief Judicial Magistrate through special messenger. The Court of Chief Judicial Magistrate was situated at a distance of only about 15 k.m. There is no explanation about delayed receipt of the First Information Report in the court of Chief Judicial Magistrate. The extraordinary delay in receipt of the First Information Report in the court of Chief Judicial Magistrate provides, a legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embelishments. 20. For the reasons mentioned aforesaid, the conviction and sentence of the appellants cannot be sustained. Accordingly, they are set aside and in the result the appeal is allowed. Appellants Bateshwar Singh and Upendra Singh are in custody. They are directed to be set at liberty forthwith if not wanted in any other case. 21. B. PRASAD, J.:- I agree. Appeal allowed.